Is Mississippi’s Distinctive Method of Electing Governors Constitutional? Part One in a Series

Posted in: Constitutional Law

Last week Mississippi voters went to the polls to elect a new governor. Term limits prevented incumbent Phil Bryant from running again. And so, following primary elections, the Republican Party nominated in his place Lieutenant Governor Tate Reeves. The Democrats put up Jim Hood, the state’s attorney general since 2004 and currently the only Democrat holding statewide elected office in Mississippi. Hood’s popularity, combined with the prospect of voters expressing dissatisfaction with President Trump and Washington Republicans, made for an unusually tight race. But there was an added twist. Mississippi’s constitution provides for a unique process for electing its governor. Alone among the states, Mississippi requires a successful candidate in gubernatorial elections to win both: 1) a majority (rather than just a plurality) of statewide votes; and 2) a majority of the Mississippi House of Representatives districts. If no candidate satisfies both of these requirements, the state House of Representatives selects the governor from the two top popular-vote getters. The only time the House has decided a gubernatorial election was in 1999, when it picked Democrat Ronnie Musgrove, who had won a narrow popular-vote plurality (but not a majority) in a four-way election. No Democrat has since been elected governor. Last week there was a decent possibility that Democrat Jim Hood would win the support of a majority of voters but fail to capture a majority of the state’s districts and then the House, safely Republican, would choose Reeves. As things turned out, Reeves ended up winning a majority of the statewide votes, and he also captured a majority of the districts. The House’s power to choose the governor remained dormant.

That, however, is not the end of the matter. A lawsuit filed last summer in federal court challenges Mississippi’s very process for selecting its governor. In the space below—and in a second column in this two-part series in a few weeks—we, in typical law-professor fashion, engage in some quick and dirty “issue spotting” so that people can better follow the case as it makes its way through the federal judicial system.

At the outset, some background: The complaint alleges that the Mississippi system, which was added to the Mississippi constitution in 1890, violates the federal constitutional rights of the plaintiffs, who are individual African American registered voters in the state. In particular, the plaintiffs contend that Mississippi’s system harms African American voters, who make up a large group (but still a minority) of Mississippi voters, in several ways. First, because African-American voters (and white voters too) often engage in bloc voting, the requirement (the so-called “Popular Vote Rule”) that a successful candidate win a majority of the popular votes—rather than simply more than any other candidate—makes it hard for a minority group like African Americans to elect the candidate of their choice. Moreover, because the state’s African-American population is not distributed evenly throughout the state but is concentrated in a relatively small number of House districts, the requirement (known as the “Electoral Vote Rule”) that a winning candidate prevail in a majority of House districts across the entire state hurts African Americans (and also Democrats). In the same way, the complaint alleges, resolution of gubernatorial elections in the state House of Representatives hurts groups that are concentrated into a minority of House districts.

The plaintiffs emphasize that Mississippi’s gubernatorial election scheme is unlike that of any other state. Mississippi is the only state that has an Electoral Vote Rule or any other feature of gubernatorial elections that takes account of geographic popularity throughout the state. Only three states have a Popular Vote Rule requiring a majority, rather than a plurality, of statewide votes. And only one other state has any role for the state House of Representatives in selecting governors. When you combine the three, Mississippi is undeniably an outlier. Yet, as Chief Justice John Roberts rightly observed in the seminal 2012 Obamacare case, unusual is not the same thing as unconstitutional. But the plaintiffs in Mississippi’s challenge also allege that in 1890, when these Mississippi provisions were created, they were intentionally designed to reduce the political power of newly enfranchised blacks, as the state was trying to undo the major racial equality advancements of the Reconstruction era and move into a new era of racial caste known as Jim Crow.

For these reasons, and because (according to the plaintiffs) the Electoral Vote Rule violates the one-person, one-vote principle the Supreme Court has recognized for legislative elections insofar as someone could win a majority of state House districts but get far fewer votes than her opponent statewide, Mississippi’s regime violates the Fourteenth and Fifteenth Amendments. (The plaintiffs further assert that the Mississippi scheme violates the federal Voting Rights Act.)

The plaintiffs sought a preliminary injunction to bar Mississippi from using its challenged process in last Tuesday’s election. On the Friday before the election, U.S. District Judge Daniel P. Jordan III issued an order denying the plaintiff’s motion. The court found that the plaintiffs had a strong likelihood of success under the Supreme Court’s precedents mandating a rule of “one person, one vote.” Nonetheless, Judge Jordan held, a preliminary injunction was unwarranted. He explained: “Absent some impact on the election results, the constitutional injury . . . is outweighed by the harm a preliminary injunction would cause when the Court attempts to craft a new method for electing statewide officers on the eve of the election. So too, the public interest would not favor such intervention at this preliminary stage.” In other words, suspending even a likely unconstitutional electoral process in advance would be too disruptive. In support of his ruling, Judge Jordan cited a curious 1988 Fifth Circuit case, Chisom v. Roemer, in which the Court of Appeals warned district courts to act with caution before granting injunctions in election cases and to gives states a prior opportunity to fix unconstitutional voting laws—an impossibility here, Judge Jordan concluded, because of the onerous procedures involved in amending the state constitution. However, Judge Jordan added in a final footnote to his order the observation that, if determining the 2019 gubernatorial election outcome actually shifted to the House, “a far more tangible injury could become imminent” and “the case would likely proceed to an expedited trial on the merits.” Judge Jordan has not yet ruled on the state’s own motion to dismiss the entire case. Both sides are likely to appeal whatever decision Judge Jordan reaches.

Limiting ourselves to the claims raised under the Fourteenth and Fifteenth Amendments (and without distinguishing between the two, even though the Fourteenth Amendment did not originally protect political rights like voting), we see several important questions in the case. Among them are:

  1. Do plaintiffs need to prove invidious racial intent in order to prevail? Yes. Even assuming the Popular Vote and Electoral Vote Rules have a negative effect on the voting power of African-American (or Democratic) voters relative to the power these groups might enjoy under alternative voting systems, the Supreme Court in cases like Mobile v. Bolden and Rodgers v. Lodge (cases challenging “at-large” voting systems that make it harder for minorities to elect candidates of their choice to multi-member legislative bodies, compared to the success minority groups might have if members were elected separately from each geographical district) has made that answer clear. Challenges to facially neutral voting rules (i.e., voting rules that on their face do not make the race of individual voters relevant) on the ground that these rules dilute the voting strength of racial minorities “are subject to the standard of proof generally applicable to Equal Protection Clause cases” such as Washington v. Davis, which require proof of invidious intent. Disparate effect against a racial group, standing alone, is insufficient. Indeed, the Court has noted that at-large systems, which may be disfavored by racial minorities, are not unconstitutional unless motivated by racial animus.
  2. Does that mean that proof of disparate harm to racial minorities is irrelevant? Not at all. The Court has repeatedly observed that disparate effect can sometimes be quite important evidence in proving invidious intent. To put the point another way, as the Court in Rodgers v. Lodge affirmed, “discriminatory intent need not be proven by direct evidence.”
  3. But in most equal protection arenas, like housing and employment, isn’t proving invidious intent without direct, smoking-gun evidence nigh impossible? Yes, but in so-called “political rights” cases (i.e., those involving voting, jury service, and related activities), the Court has been much more willing to infer bad intent pretty much from disparate effect alone. Rodgers v. Lodge and Gomillion v. Lightfoot are examples of this.
  4. But would the current Supreme Court be as willing as prior Courts to infer intent from effect? Perhaps not. But often there is smoking-gun evidence of invidious motive, especially for provisions enacted in the South around the turn of the twentieth century, when Southern white supremacist politicians saw less need to hide (and indeed often gained political advantage by trumpeting) their true motives in public proclamations. This was true in a 1985 case that is somewhat similar to the current Mississippi challenge, Hunter v. Underwood, where the Supreme Court invalidated a 1901 provision of the Alabama Constitution that disenfranchised felons; the legislative history of the provision made clear that preventing blacks from voting was the primary motivation behind the provision. Plaintiffs in the Mississippi case may be able to adduce similarly explicit historical evidence.
  5. How important are the findings the district court makes regarding invidious intent? In prior cases, like Rodgers, the Supreme Court gave a great deal of deference to the lower courts, especially the district court, on the question of the motive of the legislators, asking only whether the trial court’s factual findings (whatever they may be) are clearly erroneous. Not clear whether the current Supreme Court would be similarly deferential, especially when findings of intent are based on a paper record that the Supreme Court can review as easily as lower courts can.
  6. Indeed, don’t recent cases in the Court such as the so-called “Travel Ban” case and “Census/Citizenship Question” case reflect a disinclination by the Court to find impermissible racial or religious bias as the motivating force behind facially neutral enactments? Yes, but note that those cases involved challenges to presidential actions based on allegations of improper presidential intent. Whether the Court admits it or not, it is much less deferential to state and local government actors. For example, the Court had no problem finding impermissible religious discriminatory intent on the part of the Colorado state authorities in the Masterpiece Cakeshop case involving the Colorado baker who didn’t want to make a cake for a same-sex wedding. And, as noted above, political rights cases represent a setting where the Court has been more open to finding impermissible motive. (Neither the Travel Ban case nor the Census case directly involved exercise of political rights.)
  7. What if the original 1890 Mississippi Constitution provisions were motivated by racial bias but the state has maintained its unique gubernatorial election method for different and benign reasons in recent decades? That is an interesting question. In Rodgers, the situation was reversed; the at-large system was created for permissible reasons originally but was (according to findings made by the district court and upheld on appeal) maintained for racist reasons later. And the race-based maintenance was held unconstitutional. But can a racist taint be cured by the passage of time and the absence of any bad motive among today’s lawmakers? Apparently not simply by legislative inaction. In Rodgers, the Court pointedly opined that the Constitution is offended if provisions are “conceived or operated as purposeful devices to further racial discrimination.” Notice the disjunctive use of the word “or.” The Court was even more explicit on this point in Hunter v. Underwood (the Alabama case). There, the state argued that “events occurring in the succeeding 80 years [since enactment] had legitimated the provision.” The Court responded by suggesting perhaps if the state repealed and modernly reenacted the same provision (under circumstances that assured the Court that there is no remaining invidious motive), then the Court might uphold it. But, said the Court, if “the original enactment was motivated by a desire to [harm] blacks on account of race and the [provision] continues to this day to have that effect . . . [then it] violates Equal Protection.
  8. Relatedly, what if there were multiple motivations for Mississippi’s adoption of its election scheme in 1890, and racial bias were only one of them? The Court in Hunter v. Underwood (confronted with a similar question) made clear that if the racial bias were a “but-for” cause of the enactment at the time (in other words, if the other purposes would not have resulted in enactment by themselves), then the scheme is still unconstitutional. The Court applied this rule in Hunter itself in a way that suggests the burden is quite high on a state trying to prove harmless racial error, so to speak.
  9. What about the plaintiffs’ claims that the Electoral Vote Rule violates the one-person, one-vote principle? Doesn’t that principle invalidate unequal treatment without proof of racial motivation? And precisely what is the basis for the plaintiffs to have standing in federal court to challenge the Mississippi scheme? And how sensible was the district court’s instinct that a remedy after an election was kicked to the House is more justifiable than one before Election Day? Stay tuned—we take up those issues in subsequent installments in the series.

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